456 F.2d 696 | Ct. Cl. | 1972
Lead Opinion
: In this extremely close case, we have concluded that plaintiff has not made a sufficient showing to
The commissioner filed his opinion and report on June 28, 1971, and plaintiff has taken no proper exceptions to the facts found by the commissioner, except for those based on a coroner’s report. Under our rule, the commissioner’s findings of fact 'are presumed to be correct because of his opportunity to hear the witnesses and to determine the weight to be accorded to their testimony. A party who undertakes to overcome this presumption must make a strong affirmative showing to the contrary. Wilson v. United States, 151 Ct. Cl. 271 (1960) and Davis v. United States, 164 Ct. Cl. 612 (1964).
Although the presumption does not extend to the conclusions of law made by the trial commissioner, he saw and heard the witnesses and had a much better opportunity than the court to familiarize himself with all of the circumstances involved. In the light of this situation and a consideration of the record, we find that under the peculiar facts and circumstances of this case, his conclusions are not unreasonable or unwarranted by the record.
Therefore, since the court agrees with the trial commissioner’s opinion, findings of fact and recommended conclusion of law,
OPINION OE COMMISSIONER
Oolaianni, Uommissioner; Plaintiff seeks to recover losses sustained by reason of the death of her husband on behalf of herself and the surviving children pursuant to the provisions of Article I of the Treaty of July 3, 1868, 15 Stat. 673.
Plaintiff is the widow of Robert Hebah and administra-trix of his estate. Plaintiff and her deceased husband were Shoshone Indians who lived together in a low-income apartment complex on the Wind River Indian Reservation, Fremont County, Wyoming.
Pursuant to the aforementioned treaty provisions, plaintiff had a proof of wrong-doing served upon the Superintendent of the Wind River Indian Reservation and the Commissioner of the Bureau of Indian Affairs in Washington, D.C.
This court has previously decided that the Treaty of 1868 gives plaintiff the right to sue as an individual, in her own behalf and that of her children. The court also decided that it had jurisdiction over the claim filed by plaintiff, and that Norman Moss, a member of the reservation police force, is included in the group “other people subject to the authority of the United States” mentioned in the Treaty of 1888.
Because of the importance of events leading up to the killing Of Mr. Hebah to a determination of the issues before the court, a discussion of the pertinent events culminating with the shooting will be reviewed.
The controversy arises from the death by shooting of plaintiff’s husband by tribal policeman Norman Moss. Decedent returned to Apartment 18 at Tigee Village 'about midnight on March 13,1968. He was drunk, angry and carrying a one pint bottle and a one-half pint bottle of whisky. Decedent had been released earlier in the day from a hospital in Gasper, Wyoming, after spending some 2 days there for tests and observation. The exact nature of Mr. Hebah’s medical problems was not established, but he had been complaining for some time of being in ill health.
Because of Mr. Hebah’s drunken condition, Mrs. Hebah felt that this was not the best time to inquire about the hospital results. Instead she suggested that they all go to bed.
In addition to Mrs. Hebah, her pregnant daughter Cecelia Bose, her pregnant daughter-in-law Joyce, her son and grandson by a previous marriage, and her brother all intended to spend the night in the apartment. The grandson was sharing Mr. and Mrs. Hebah’s bedroom, Cecelia Bose was occupying her own bedroom, and Mrs. Hebah’s brother and son settled down for the evening in the living room.
‘Shortly after going to bed, Mr. Hebah started to choke Mrs. Hebah, and stated:
We are both sick, and we might ‘as well get rid of our lives some easy way. * * * I am going to finish this, this time. * * *
Mrs. Hebah became frightened and, on the pretext of getting some medication, left the bedroom for the peace and safety of her daughter’s bedroom. The absence of Mrs. Hebah apparently angered Mr. Hebah for he told the grandson who was sharing the bedroom to go land get her. However, the grandson was also frightened by Mr. Hebah, and he instead went to the living room and did not return.
Mr. Hebah, drunk, angered over being abandoned by his
However, Mrs. Hebah did not call the police. Instead, after the passage of a few minutes she and her daughter decided to leave the grandchild at the apartment of the neighbor and to return to their apartment. Mrs. Hebah felt that it would be safe because she thought she had given Mr. Hebah adequate time to pass out from the consumption of the liquor he carried into the apartment. She was wrong.
After only a few minutes in Cecelia’s bed, they heard Mr. Hebah get out of his bed and proceed to the living room. Hearing Mr. Hebah threaten Mrs. Hebah’s brother and son by a previous marriage and kick her brother in the back, Mrs. Hebah did not pause to discuss the matter; she immediately got out of bed and fled to the neighbor’s apartment once more. Mrs. Hebah’s brother and son also left the apartment at this time. On the other hand, Cecelia Eose went into the living room and grappled with her father in an attempt to wrest the rifle from him. She was unsuccessful in her efforts because the rifle was strapped to her father’s shoulder. Seeing her father’s finger on the rifle trigger, Cecelia Eose gave up and ran from the apartment to join her mother.
Joyce Hebah also left the apartment. While it is unclear whether she left at the time of Mrs. Hebah’s first or second
Both mother and daughter were now convinced of the necessity of police intervention, and they ran to the phone at the Tigee Village apartment office to call the tribal police. While on their way, they discussed the matter with a neighbor, who in turn agreed to place the call for them. The call was received at the Wind Biver Beservation police station by Hebah’s son, Alvin, who by coincidence, had been arrested and was acting as jail trustee that evening. Alvin contacted Officer Norman Moss at his home to report the call and inform him of the necessity of his presence at Apartment 18 of Tigee Village.
Within 10’ minutes after he received the call, by 1:15 a.m., Moss was at Tigee Village. He drove slowly around the U-shaped road which separated the two rows of facing apartments at the village in an attempt to find the disturbance that he was called to investigate. All was quiet, he saw no disturbance, heard no commotion. After circling the area another time without seeing anything, Moss was about to leave when he saw Mrs. Hebah and Cecelia Bose in the entrance way of the neighbor’s apartment. He was told that they had called the police and needed help.
Mrs. Hebah explained to Officer Moss that her husband was drunk, armed with a rifle, had plenty of ammunition, that he had chased her brother and son out of the apartment, that he had threatened her with bodily harm, and that she and her daughter had fled from the apartment.
Undoubtedly Moss was impressed with the seriousness of the situation, for he immediately contacted Special Officer Harry Svela, the ranking officer on the tribal police force, for assistance.
Svela did not know what had occurred at Tigee Village or why he was needed. He arrived at approximately 1:30 a.m. Svela was told by Moss that Mr. Hebah returned home at about midnight in a drunken and angry state, that he had since armed himself with a rifle, threatened members of his family, and drove them out of the apartment. Svela then
Officer Charles Whiteman arrived at about 1:35 a.m. He was followed by Chief Whiteman at about 1:55 a.m., and was the last officer to arrive. By the time they arrived, Moss had gone to the rear of the Hebah apartment to keep the hack door under surveillance in the event that Hebah, if he was still in the apartment, should try to use it. Svela remained to guard the locked front door. Upon the arrival of the Whitemans, Svela apprised them of the situation, particularly emphasizing that Hebah returned home at about midnight drunk, had under threat of bodily harm driven his wife, daughter and various relatives from the apartment, and was now armed with a loaded rifle. They also reviewed the floor plan of the apartment, and discussed the room which Hebah in all probability was occupying.
Prom the time that Moss first arrived at the apartment, approximately 1:15 a.m., until the time that Chief White-man arrived, about 1:55 a.m., the Hebah apartment remained dark. Although Officer Moss, while guarding the rear door, did hear a muffled voice inside the Hebah apartment, on the whole all was quiet. Hebah -had not caused a commotion or disturbance of any kind.
After being briefed, Charles Whiteman went to the back of the apartment to assist Moss. He, however, found that Moss had already entered the apartment, by way of the back door, and he proceeded inside the apartment after Moss. By this time, Moss had started to search the apartment and was about to open the door of the room that Hebah
Norman Moss then opened the front door of the apartment and let Chief Whiteman in. Thereafter, Svela and Chief Whiteman flanked the closed bedroom door. Officer White-man positioned himself in the hall leading to the rear door of the apartment, and Officer Moss assumed a position at the junction of the kitchen and the living room, near the front door.
Svela unsuccessfully asked Mr. Plebah to come out of the bedroom to talk. Mr. Hebah responded by telling him that he would have to come in and get him. Also, Svela asked Hebah if he had a rifle, and Hebah replied that he would have to come in the bedroom to find out. Frustrated, Svela gave up.
Chief Whiteman took up where Svela left off and also tried to coax Hebah out of the bedroom. Chief Whiteman even called Hebah by the nickname “Dry Meat,” an appellation which both Hebah and the Chief jokingly called each other over the past few years. While the name did have connotations concerning one’s sexual adequacy, Whiteman said he did not intend to be offensive, and indeed did not take offense when Hebah called him that name. There is no doubt that Hebah knew that he was being called by Chief John Whiteman of the Tribal Police for in response to at
In all, both Svela and the Chief tried for some 10 minutes to talk Hebah out of his bedroom. During the entire time the police officers were inside the apartment they did not tell Hebah what they wanted him for, that he was under arrest, or identify themselves. Nonetheless Hebah’s calling of the Chief by his first name makes clear that he knew that the persons at his bedroom door were police officers.
Because of Mrs. Hebah’s information concerning Mr. Hebah’s drunken and armed condition, both ’Svela and Chief "Whiteman were prepared to use tear gas, if it became necessary. The tear gas canister which Svela carried into the apartment was of the type that jumped around under its own power after going off, and emitted its gas from several openings in the container. The container ¡also was clearly marked that it was to be used before 1958. Notwithstanding this marking, Svela was hopeful that it would perform properly.
Svela, as the officer in charge, decided that he would handle the placement of the tear gas canister. Thus, feeling that it would be most effective if the gas discharged inside of the bedroom, Svela knelt to one side of the bedroom door and with one motion turned the door knob and pushed the door open. 'However, because of an obstruction, the door only opened about 6 to 8 inches. Almost simultaneously with the pushing open of the bedroom door, Svela attempted to throw the armed tear gas canister through the partially opened door, and Hebah fired a shot through the door. A splinter or other object flew past Svela’s head. Tire tear gas canister struck the door jamb, rebounded, and went off. It appears, from the stains on the floor that in this instance the canister followed a 5-foot long and 1-foot wide path along one living room wall.
With the rebounding of the tear gas canister into the. apartment area occupied by the policeman and Hebah’s firing through the bedroom door, the four officers decided to evacuate the apartment. All of the officers heard the “pop” of the canister. Officer Whiteman even smelled the tear gas just before he went out the back door. Charles also claims, as
Chief Whiteman saw a white cloud of smoke rise from the canister as he was about to leave the apartment by way of the front door. The Chief ran out the front door and to his right. He momentarily went behind a solid cinder block abutment, situated about 8 feet from the front door, that ran the entire distance from the ground to the roof of the apartment. The abutment projected about 4 feet from the front wall of the apartment. None of the officers had drawn his service revolver while he was inside of the Hebah apartment trying to coax Hebah out of his bedroom. However, while he was still behind the abutment, Chief Whiteman, for the first time, drew his revolver.
Officer Moss ran through the front door of the apartment and to his left. He ran toward a solid concrete block abutment, about 8 feet from the front door, similar to the one behind which Chief Whiteman was positioned.
Moss went behind the abutment and for the first time since arriving at Tigee Village drew his revolver. Moss then assumed a partially exposed position near the edge of the abutment, which enabled him to have an unobstructed view of the front door of the Hebah apartment.
'Svela also ran from the apartment to his left and took up a position behind the abutment to the side of Moss. Svela likewise had a full view of the front door of the Hebah apartment. Similar to Moss and Chief Whiteman, Svela drew his revolver for the first time.
Because of the shot which Hebah fired through his bedroom door, and a second shot which Moss claims to have heard as he was going out the front door, Moss felt that Hebah would be-coming out of the apartment with his rifle. Thus, Moss had his gun aimed at the front door. Of course, the officers could not be sui’e that Hebah would be coming out of the front door.
Very shortly, Svela estimated the time to be 5 or 10 sec
As Hebah came out the front door, he momentarily paused. Svela had Hebah in view and cautioned Moss to “Watch him, watch him.” Hebah turned his head and eyes in the direction of where Svela and Moss were positioned and raised his hands and rifle. Moss assumed that Hebah had seen him, and was raising the rifle to a firing position. Therefore, before Hebah could get the rifle to his shoulder, Moss fired one shot. The bullet entered Mr. Hebah’s left first rib and perforated his right fourth rib and lodged near there.
After being hit, Hebah dropped the rifle at his feet, fell backward against the front of the apartment and slumped to the ground. Svela innnediately ran to - Hebah, picked up the rifle and placed it out of his reach.
All during this brief incident Chief Whiteman had been behind the abutment motioning to Charles to assume another position, so that he would not be in the Chief’s line .of fire if Hebah should leave the apartment by way of the rear door. Accordingly, Chief Whiteman did not see Hebah come out of the front door or witness the shooting. However, upon hearing the shot, Chief Whiteman turned his attention to the front door, and running toward Hebah he took possession of -the rifle and locked it in his police car. A later investigation disclosed that the rifle was cocked for firing, a bullet was in its firing chamber, and eleven more bullets were.in its magazine.
Officer Whiteman also heard the shot fired by Moss and ran to the front of the apartment to investigate. He was told that Hebah had been shot, and to go get his police car so that
While Officers Whiteman. Svela and Moss were arranging for Hebah’s medical attention, Chief Whiteman returned to Wind River Reservation jail. Some hours later, he was told of Hebah’s death and given the assignment of informing Mrs. Hebah. Upon arrival at the Hebah apartment, White-man found Mrs. Hebah crying in her bedroom. She had already been told of her husband’s death. Whiteman expressed his sympathy and was told by Mrs. Hebah that:
Robert was sickly * * * he always wanted to shoot it out with a policeman and I think that’s the way he wanted it * * *.
With these background facts in mind, it is appropriate to review the clause of the Treaty of July 3, 1868,15 Stat. 673, supra, which is relevant to this case. That clause provides:
If bad men among the whites, or among other people subject to the authority of the United States, shall commit any wrong upon the person or property of the Indians, the United States will, upon proof made to the agent and forwarded to the Commissioner of Indian Affairs at Washington City, proceed at once to cause the offender to be arrested and punished according to the laws of the United States, and also reimburse the injured person for the loss sustained.
While the clause contains a number of requisites which plaintiff has the burden of proving, the only ones which have not been previously established or admitted are, in plaintiff’s own words:
(1) Was Norman Moss a “bad man” in the sense of the treaty?
(2) Did he commit a wrong on the person of Robert Hebah, and if both of the foregoing are answered in the affirmative; then,
(3) What sum will “reimburse the injured person for the loss sustained ?” [Emphasis added.]
Since the Treaty of 1868 does not define the term “wrong” as used in Article I thereof, other means must be used to ascertain the intended meaning of that term. In interpreting the meaning of treaties with the Indians, it has long been held that the language used “should never be construed to their prejudice. If words be made use of, which are susceptible of a more extended meaning than their plain import, as connected with the tenor of the treaty, they should be considered as used only in the latter sense.” Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 582 (1832). To the same effect Jones v. Meehan, 175 U.S. 1, 10-11 (1899) ; Winters v. United States, 207 U.S. 564 (1908) ; Choate v. Trapp, 224 U.S. 665 (1912); Confederated Bands of Ute Indians v. United States, 330 U.S. 169, 179 (1947). Further, treaty interpretation is no different than interpretation of any other type of document, and since the Government drafted the treaty so as to express the understanding of an unlettered, illiterate, nondrafting party, any dispute as to meaning should be resolved against the driafter.
To establish the common or plain meaning of a word or term, this court has long accepted dictionary definitions. Webster’s New International Dictionary (3rd ed. 1968) gives, among other definitions, the following definition for the noun “wrong”: “Action or conduct which inflicts harm without due provocation or just cause; serious injury wantonly inflicted or undeservedly sustained; unjust or unmerited treatment * * *.”
To an Indian, and undoubtedly to all men, the Mlling of an Indian without just cause or reason would certainly be a wrong within the meaning of the Treaty of 1868. Accordingly, to determine if a wrong has been committed, it is necessary to establish if the killing of Hebah by Moss was justifiable and necessary under the circumstances of this case.
Plaintiff contends that any attempt to arrest deceased
(1) that there was any real or apparent, imminent danger to himself; or
(2) that there were not reasonable alternatives to shooting to kill.
In addition, plaintiff suggests that Moss intended to kill deceased when he came out of the door because Moss was aiming his gun at the door, and he admitted he could have shot to wound deceased if he had wanted to do so. Accordingly, plaintiff concludes that the shooting of deceased was an unreasonable .and unnecessary use of force by Moss under the circumstances, and, therefore, was a wrong within the meaning of the Treaty of 1868.
Defendant, on the other hand, contends that conditions precedent to recovery which allegedly are expressly set forth in the Treaty of 1868 have not been fulfilled. Defendant asserts that the plain language of the Treaty of 1868 makes the arrest and conviction of the wrongdoer a condition precedent to recover, and that Moss has never been arrested or convicted for any offense in connection with the shooting of deceased. Defendant also asserts that the plain language of the Treaty of 1868 requires that no reimbursement be made to one who sustains a loss while violating the laws of the United States, and that deceased was violating the laws of the United States when he suffered his “loss.” Further, defendant argues that Moss committed no wrong upon deceased because the arrest attempt was lawfully made and, under the circumstances, the shooting of deceased was justi-
In order to determine if a “wrong” was committed by Moss, the more pertinent arguments of the parties will now be considered. Plaintiff and defendant have devoted considerable time, both at the trial and in their briefs and requested findings of fact, to the question of whether the tribal police were required to have a warrant or complaint in order to enter the apartment and to arrest Hebah. This, of course, requires a determination of whether the officers were, by their entry without a warrant, or signed complaint, mere trespassers or invitees.
In this instance there is no doubt that the police officers were called to the Hebah apartment by Mrs. Hebah. The officers were told that Hebah was drunk, armed with a loaded rifle, and that he had chased his wife and pregnant daughter from the apartment. The officers were also told by Mrs. Hebah that her brother, son and grandson, from a previous marriage, were chased from the apartment and forced to make other sleeping arrangements for the evening. Further, Mrs. Hebah, who alone signed the lease for the apartment, indicated to the officers that she and her daughter wanted to reenter and reoccupy the apartment. In fact, at the request of the officers, Mrs. Hebah and Cecelia drew a floor plan of the apartment, and even suggested which bedroom they felt Mr. Hebah would be occupying. Accordingly, there is no doubt that the officers entered the Hebah apartment as invitees of Mrs. Hebah. Thus, no warrant or signed complaint was needed by the officers to enter the apartment.
After entering the apartment as invitees of Mrs. Hebah, the acts of the tribal police in attempting to arrest Mr. Hebah, conformed to the procedures prescribed by reservation regulations. The requirements which members of the Indian police must adhere to in making arrests for certain
With respect to the Court of Indian Offenses, 25 CFR § 11.2 (1968) provides in pertinent part that:
(a) A Court of Indian Offenses shall have jurisdiction over all offenses enumerated in §§ 11.38-11.87NH, when committed by any Indian, within the reservation or reservations for which the court is established * * *
(b) With respect to any of the offenses enumerated in §§ 11.38-11.87NH, over which Federal or State courts may have lawful jurisdiction, the jurisdiction of the Court of Indian Offenses shall be concurrent and not exclusive. It shall be the duty of the said Court of Indian Offenses to order delivery to the proper authorities of the State or Federal Government or of any other tribe or reservation, for prosecution, any offender, there to be dealt with according to law or regulations authorized by law, where such authorities consent to exercise jurisdiction lawfully vested in them over the said offender.
(c) For the purpose of the enforcement of the regulations in this part, an Indian shall be deemed to be any person of Indian descent who is a member of any recognized Indian tribe now under Federal jurisdiction, and a “reservation” shall be taken to include all territory within reservation boundaries, including fee patented lands, roads, waters, bridges, and lands used for agency purposes.
With respect to arrests 25 CFR § 11.15 (1968) provides as follows:
No member of the Indian police shall arrest any person for any offense defined by §§ 11.38-11.87NH or by Federal law, except when such offense shall occur in the presence of the arresting officer or he shall have reasonable evidence that the person arrested has committed an offense or the officer shall have a warrant commanding him to apprehend such person.
Under this regulation, it is not necessary for an Indian police officer to have a warrant to arrest an Indian for offenses delineated therein, which occur in the officer’s pres
Entry into the apartment to arrest Hebah was thus permissible even without a warrant or a signed complaint, by relevant reservation regulations which govern the actions of Tribal Police officers, if the offense which Plebah was accused of committing occurred in the presence of the arresting officers, or they had reasonable evidence of its commission. Plaintiff correctly points out that from the time the police arrived, until they entered the apartment, about 40 minutes, there had been no commotion or disturbance, and the apartment was dark and quiet. Indeed, the officers were not at all certain that Mr. Hebah was in the apartment. Plaintiff further points out that the officers did not see Hebah commit or attempt to commit any offense prescribed by 25 CFE §§ 11.38-11.87NH or by Federal law.
Plaintiff’s position ignores the fact that 25 CFR § 11.15 does not require the police officers to have a warrant to make an arrest if the offense occurs in the presence of the police officers or if the police officers have reasonable evidence that the person arrested committed an offense. Moreover, plaintiff’s position ignores the information provided by Mrs. Hebah to the officers who responded to her call for help,
The possession of whisky is a violation of 25 CFE § 11.55,
Even if the foregoing facts were insufficient to constitute the commission of an offense in the presence of the tribal officers, such facts are sufficient to constitute “reasonable evidence” of the commission of offenses as required by 25 CFR § 11.15. Therefore, the officers did not need a warrant to enter the apartment or to arrest deceased and, in fact, were under a duty to enter the apartment to at least investigate repotted offenses, if not to arrest deceased for such offenses.
Once in the apartment, the conduct of the police officers was also, on the whole, reasonable and proper. While it is perhaps true that more eloquent, patient, or tactful men than the officers in question might have persuaded deceased to come out of his bedroom without any incident, that does not necessarily render the conduct of the officers inside the apartment unreasonable or improper. The officers had a duty to at least talk to deceased. Although the officers did not tell deceased why they wanted to talk to him or who they were and deceased apparently did not see them, it would be preposterous to presume that Mr. Hebah did not know who they were or why they wanted to see him. In fact, the calling by Mr. Hebah of Chief Whiteman by his first name vitiates all arguments that Mr. Hebah did not know that the persons outside his door were police officers. It would be .absurd to assume that Hebah did not know that his armed threats to do bodily harm to the occupants of the apartment did not violate the Wind River Reservation laws of assault and/or disorderly conduct. Deceased also knew, from prior, arrests, that drinking was a violation of the laws of the reservation.
The officers, thwarted in their attempts to persuade deceased to come out of his bedroom to talk and under a duty to investigate the matters brought to their attention by Mrs. Hebah, decided they had no alternative but to use tear gas to compel Mm to come out. The circumstances warranted the officers forcing an encounter with deceased not only in an effort to investigate the reasonable evidence that showed Hebah’s violation of one or more Code of Indian Tribal Offenses, but also to prevent Mr. Hebah from injuring himself, or another with the loaded rifle. Tear gas normally is not permanently disabling or fatal, nor does it cause severe temporary injury. Indeed, the use of tear gas is a reasonable, humane and recognized means to compel a person to leave a place he wrongfully refuses to leave. Accordingly, in the present case, the use of tear gas was reasonable and proper.
Under the circumstances of this case, the shooting of Hebah was reasonable and necessary. When deceased appeared at the front door of his apartment with a rifle in his hands, he had already fired at least one shot in the direction of and in close proximity to the investigating officers. The officers had no way of determining whether the shot was fired in anger or in warning. The officers had been informed that deceased was drunk, and he probably was drunk. However the officers did not know for a certainty that he was drunk. Also, it is common knowledge that intoxication does not necessarily signify physical or mental prostration to the extent that a
This was the situation confronting Moss, when deceased looked in his direction and began raising his arms. While killing either in self-defense or to effectuate an arrest is a last resort, an officer is not required to take unnecessary or undue risks in the performance of his duties, Terry v. Ohio, 392 U.S. 1, 23, 27 (1968). The standard by which an officer’s conduct with respect to the use of deadly force is measured is whether he had grounds to reasonably believe that his life or the lives of others were in immediate danger of death or serious bodily harm, not whether a reasonably prudent man would so believe or whether he behaved as the ideal officer would have, Brown v. United States, 256 U.S. 335, 343 (1921). And, as Justice Holmes said in Brown v. United States, supra, “Detached reflection cannot be demanded in the presence of an uplifted knife.” In short, a police officer’s actions are not to be judged from the remote vantage point
It is true, as plaintiff contends, that Moss had arrested deceased before this shooting, without incident. However, this cannot be used to show that Moss should have known that Hebah was a loud-mouthed but harmless individual. In the previous arrests by Moss, Hebah was not armed with a rifle, had not chased relatives and members of his own family from their apartment under fear of bodily harm or for their lives, and had not refused to talk to Moss or discharged a rifle in the presence of arresting officers.
Perhaps Moss or the other officers on the scene could have disarmed deceased without injury to themselves or others. However, Moss together with other officers were there investigating deceased’s conduct which involved the use or threatened use of deadly force, and deadly force, even if as a warning, had been directed alt the officers by Mr. Hebah in the course of that investigation. The record certainly does not disclose that deceased was incapable of firing his rifle and of even wounding or killing someone. Indeed, it shows that Mr. Hebah was capable of, and did fire his rifle at least once that evening.
Under the circumstances herein, it is impossible to say that Moss did not have a reasonable belief that his life was in danger when Hebah turned his head and eyes in his direction and began to raise Ms hands and the rifle toward a possible shooting position. Accordingly, it was regrettable but reasonable for Moss to shoot to kill decedent. Having determined that the killing of deceased was reasonable under the circumstances herein, it follows that the killing was with reason or just cause. Therefore, Moss did not commit a wrong within the meaning of the Treaty of 1868.
Under the above stated view of tMs case, it is unnecessary for the .court to decide whether or not Norman Moss was a “bad” man witMn the meaning of the Treaty of 1868. Accordingly, no decision is made as to whether Moss was such a man. Other subsidiary issues are raised and I have carefully considered each, 'but conclude that an extensive discussion is not warranted.
The dissenting opinion of Bavis, Judge, in which Laramorb and Durree, Senior Judges, Join, follows the opinion of the triai commissioner which has been adopted by the court.
“Article I. Erom this day forward, peace between the parties to this treaty shall forever continue. The government of the united States desires
“If bad men among the whites, or among other people subject to the authority of the united States, shall commit any wrong upon the person or property of the Indians, the united States will, upon proof made to the agent and forwarded to the Commissioner of Indian Affairs at Washington City, proceed at once to cause the offender to be arrested and punished according to the laws of the United States, and also reimburse the injured person for the loss sustained. -
“If bad men among the Indians shall commit a wrong or depredation upon the person or property of any one, white, black, or Indian, subject to the authority of the United States, and at peace therewith, the Indians herein named solemnly agree that they will, on proof made to . their agent and notice by him, deliver up the wrong-doer to the United States, to be tried and punished according to its laws; and in ease they wilfully refuse so to do, the person injured shall be reimbursed for his loss from the annuities or other moneys due or to become due to them under this or other treaties made with the United States. And the President, on advising with the Commissioner of Indian Affairs, shall prescribe such rules and regulations for ascertaining damages under the provisions of this article as in his judgment may be proper. But no such damages shall be adjusted and paid until thoroughly examined and passed upon by the Commissioner of Indian Affairs, and no one sustaining loss while violating or because of his violating the provisions of this treaty or the laws of the United States shall be reimbursed therefor.”
Hebah v. United States, 192 Ct. Cl. 785, 428 F. 2d 1334 (1970).
See n. 1.
See pp. 2-3 of Plaintiff’s Requested Findings of Fact.
25 CER § 11.1 (1968).
18 U.S.C. § 1153, as amended.
“Any Indian who shall possess, sell, trade, transport or manufacture any beer, ale, wine, whislry or any article whatsoever which produces alcoholic intoxication, shall be deemed guilty of an offense and upon conviction thereof shall he sentenced to labor for a period not to exceed 60 days.”
“Any Indian who shall engage in fighting in a public place, disturb or annoy any public or religious assembly, or appear in a public or private place in an intoxicated and disorderly condition, or who shall engage in any other act of public indecency or immorality, shall be deemed guilty of disorderly conduct and upon conviction thereof shall be sentenced to labor for a period not to exceed 30 days.”
“Any Indian who shall attempt or threaten bodily harm to another person through unlawful force or violence shall be deemed guilty of assault, and upon conviction thereof shall be sentenced to labor for a period not to exceed 5 days or shall be required to furnish a satisfactory bond to keep the peace.”
25 CER § 11.304 provides :
*****
“ (b) The duties of an Indian policeman shall be :
*****
“(3) To report and investigate all violations of any law or regulation coming to his notice or reported for attention.
# * * *
“(5) To inform himself as to the laws and regulations applicable to the jurisdiction where employed and as to the laws of arrest.
“(6) To prevent violations of the law and regulations.
* # # * *
“(10) To use no unnecessary force or violencetfin making an arrest, search, or seizure.”
* * * * *
25 .CFR § 11.305 provides :
“The superintendent of any Indian reservation may remove any Indian policeman for any noncompliance with the duties and requirements as set out in § 11.304 or for neglect of duty.”
Neither Federal nor State (Wyoming) law is applicable to the present, ease. The cases cited are not controlling, but are persuasive upon the decision here.
See Carroll v. United States, supra.
In fact, Mr. Hebah’s threats against his wife may have violated the Court of Indian Offenses’ February 11, 1966, Order that he “not go on the premises of Baura Hebah, while in an intoxicated or disorderly condition,” or annoy, molest or disturb her. See also 25 CFR § 11.73.
Dissenting Opinion
dissenting:
Without considering the propriety of any of the police actions before Moss shot Robert Hebah outside the apartment, I dissent because I am unable to agree with the trial commissioner’s conclusion, adopted by the court, that “it was regrettable but reasonable for Moss to shoot to kill decedent” and “the killing of deceased was reasonable under the circumstances herein.” Recognizing 'as I do that the trier-of-the-faots 'has the prime opportunity to observe the demeanor of the witnesses and appraise their credibility, I base my view squarely and largely on the testimony of Moss and the other police participants, accepting their evidence just as the trial commissioner did. I recognize, too, that we should not overturn a commissioner’s findings unless there is strong reason. But we have also reiterated that the ultimate responsibility for finding the facts in this court rests on the judges, and if we 'are convinced that the preponderance of the evidence goes against the trier’s determination our obligation is to say so. Bringwald v. United States, 167 Ct. Cl. 341, 347, 334 F. 2d 639, 643 (1964); Miller v. United States, 168 Ct. Cl. 498, 501, 339 F. 2d 661, 662 (1964); Willett v. United States, 186 Ct. Cl. 775, 787-88, 406 F. 2d 1346, 1353 (1969). That is the posture in which I now find myself.
The first thing to note, in assessing the lawfulness of the shooting, is that there is really no dispute 'as to federal law on excessive use of force by a police officer. Policemen have the right in case of a felony (Castle v. Lewis, 254 F. 917, 925 (C.A.8, 1918)):
to use such force as they then had reasonable cause to believe, and in the exercise of their sound discretion they did honestly believe, was necessary to make the arrest, but it included the right to use no more, and the use of any greater force was beyond the scope of their authority, unauthorized and without justification. Here, ■too, the measure of necessary force is that which an ordinarily prudent and intelligent person, with the knowledge and in the situation of the arresting officer, would have deemed necessary.
To the same effect, see Barrett v. United States, 64 F. 2d 148, 149 (C.A.D.C., 1933); Moran v. Lumbermen’s Mutual Cas
Several related factors convince me that Moss killed Hebah unnecessarily and without justification: (1) the total lack of warning after the deceased emerged from the house, together with the speed of the shooting; (2) Moss’ relatively safe position behind an abutment; (3) the shooting to kill rather than merely to wound; (4) the unlikelihood that Hebah could and would have shot Moss at that precise moment; (•5) the professional testimony of the other policemen that they had no thought of shooting; and (6) the brutal character of Moss as revealed by his reputation and previous history. All of these elements emerge clearly from the record, almost entirely through uncontroverted testimony.
After Hebah came from the house, there was no statement that he was under arrest, no warning to drop the gun after he was ferreted out by the tear gas (finding 51; Svela, T. 162-63; Chas. Whiteman, T. 770, Moss, T. 906). A warning would have been proper procedure once Hebah appeared on the threshold (Fishencord, T. 356; Oman, T. 311-12). When the senior officer present was asked if he considered shooting the deceased in the leg, he replied: “I didn’t give it (sic) any consideration to shooting him at all.” (Svela, T. 124). Another officer present did not even draw his gun (Chas. Whiteman, T. 758, 770) and admitted surprise that Hebah was shot (771). Hebah’s exit from the house was not only anticipated, but was the intended result of the use of tear gas, especially after four or five seconds had elapsed. In response to a hypothetical question, policemen testified that the logical result of shooting tear gas at a man is almost instantaneous blindness and that the confused motion that Hebah made in his drunken condition may have been to raise
Experienced officers, in response to hypothetical questions posed by defense counsel, indicated that proper police procedure would not dictate shooting if the officer were safely behind an abutment (Oman, T. 307; Ferris, T. 412). The senior officer present stated that Moss was behind a concrete abutment (Svela, T. 116, 120) and Moss so conceded on cross-examination.
Moss’ own testimony is damning: he never testified that he was in fear of his life; on the contrary, he left the abutment for the purpose of taking a clear shot
Moss’ deliberate decision, while behind the abutment, to shoot to kill is explainable, though not condonable, from his character as revealed by this record. The trial commissioner succinctly states: “The character testimony as to Norman Moss’ general reputation as an officer was, without exception, that it was bad.” (finding 22). His application for government employment admits several arrests, almost all of which resulted from intoxication: on two occasions, fines were imposed for reckless driving; three times for driving without a license; on two occasions, for disturbing the peace or disorderly conduct, (finding 20). Since he had not been convicted of a felony for a year previous to his application, he was hired, but in 1967 further trouble led to a temporary suspension without pay. He was observed by the Chief of Police in an intoxicated condition while on duty (in violation of 25 C.F.E.. 11.304(8)) and was charged with beating, shoot
Witness after witness — Indians, Indian police officers, and white citizens — testified to Moss’ affinity for shooting tear gas, his drunkenness, and his brutality. One Indian, formerly a trustee in a jail, reported that Moss beat and shot with tear gas a helpless drunk. (J. Armajo, T. 225-233). This testimony was corroborated by the victim of the beating (Groes-beck, T. 246, 250-52) and the investigating officer (Svela, T. 58-59). Moss even expelled tear gas in a closed ear in which his wife and children were riding (J. Armajo, T. 241). A white state senator testified that Moss was not above aiming tear gas at a crippled and completely helpless Indian (Svilar, T. 516). The episode of beating and shooting tear gas which resulted in Moss’ suspension also led to an assault and battery charge. The incident was substantiated by testimony from one of the Indian victims (Smith, T. 170-183), the former chief of reservation police (Fishencord, T. 338-39), and the assistant chief of reservation police (Ferris, 413-16). Both of these superiors described Moss as a “hothead” (Fishencord, T. 369; Ferris, T. 411) and labelled his reputation as “bad” (412), a judgment joined in by one of the Indian guidance counsellors (Trosper, T. 263). It is not surprising that Laura Hebah (626), her son (583), and daughter-in-law (605) also testified as to Bobert Hebah’s fear of being beaten and gassed by Moss. The white lawyer who represented Moss summed it up: “he was clothed subtly with a badge and he used this power, like I said, almost in a sadistic fashion” (Sen. Svilar, T. 526).
This is the policeman whose conduct we must evaluate, not some theoretical model of a careful and reasonable officer. There is, understandably, considerable reluctance on the part of courts to reflect adversely on the actions of an officer in making an arrest except where the departure from the norm is egregious. This mirrors a recognition both of the degree of danger policemen face regularly in performing their tasks 'and Of the difficulties of split-second decision-making as to the amount of force that may be necessary. Events of the past
Since the court agrees with the commissioner that the killing was justified, it does not have to decide whether Moss was a “bad man” within the meaning of the treaty. However, I am sure that, had the commissioner and the court come to ■my conclusion as to Moss’ use of excessive force, they would have no doubt as to the aptness of that characterization. The commissioner, as I have noted, found: “The character testimony as to Norman Moss’ general reputation as an officer was, without exception, that it was bad” (finding 22), and I have already set forth the evidence showing his brutality, irresponsibility, and lack of proper qualities. The record compels the finding that, even before the death of Mr. Hebah, Moss was a “bad man”, and the events of that night reinforce the appellation.
I would hold that plaintiff is entitled to recover and return the case to the trial commissioner to ascertain the amount of recovery.
FINDINGS or Fact
1* Plaintiff is the widow of Robert Hebah and adminis-tratrix of his estate. Deceased and plaintiff had been married for 25 years. Plaintiff is, and deceased was, a member of the Shoshone Indian Tribe. Plaintiff was 59 at the time of her husband’s demise, and he was 41. Two ¡adult children, Alvin Wallace Hebah .and Cecelia Rose Armago, were bom of the marriage.
2. On July 15, 1970, defendant’s motion to dismiss the petition for lack of jurisdiction was denied, and this court found that plaintiff had standing to present this claim, that
3. On July 3,1868, see 15 Stat. 6731, the United States and the Eastern Band of Shoshone and Bannack Tribes of Indians entered into a treaty. The Peace Treaty of July 3, 1868, provided, inter alia, that the Wind River Reservation be set aside for the Shoshone and Bannack Indians.
4. At the time of the aforementioned treaty, the United States was making peace treaties with several other tribes, including the Arapaho tribe. A solution was worked out when the United States obtained permission from the Shoshones to permit the Arapahoes to temporarily settle on the Wind River Reservation in exchange for a suitable reward. However, what originally began as a temporary arrangement became, with the passing of time, the permanent solution and the Arapahoes remain to this day on the Wind River Reservation. After some 35 to 40 years, the United States did make a cash payment as restitution to the Shoshones for settlement of the Arapahoes on the Wind River Reservation.
5. At the present time, there are some 4,100 enrolled members of the Shoshone and Arapaho tribes living on the Wind River Reservation. While there is no open hostility between the tribes, there does appear to be an undercurrent of resentment.
6. Complicated socio-economic frustrations have turned the Wind River Reservation Indians to alcohol. Unemployment among the male Wind River Reservation Indians runs high. Male members of both the Shoshone and the Arapaho tribes are five to ten times more likely to experience chronic drinking problems than are their male counterparts in non-Indian society. About 70 percent of the male Indians on the Wind River Reservation drink excessively.
7. As would be expected in an alcoholic dominated environment, a substantial portion of the male Indians have at some
8. The Wind River Reservation is governed by a Joint Business Council. The Arapahoes and Shoshones each elect their own six member tribal councils. The two independent tribal councils then meet as the Joint Business Council once a week to discuss and transact reservation business which is of common interest to both tribes.
9. The Department of Interior has a Bureau of Indian Affairs which supervises, directs and expends moneys appropriated from time to time by Congress for, among other things, the employment of Superintendents of Indian Reservations.
10. Among his other duties, the Superintendent of each Indian reservation is recognized as the commander of the Indian police force and as such is responsible for the conduct of its members. The Superintendent is duty bound to assign Indian policemen to carry out the orders of the Court of Indian Offenses, and to investigate charges of misconduct against Indian policemen and to discipline any violators thereof.
11. The Bureau of Indian Affairs may assign a special or deputy special officer to a reservation. That officer, on behalf of the Superintendent of police, is in charge of police affairs. The special officer is responsible to the Superintendent for the conduct and efficiency of the Indian policemen under his direction, and is charged with reporting any violations of law or regulations and any misconduct of Indian policemen to the Superintendent.
12. The Superintendent of any Indian reservation employs and appoints members of the Indian police. The qualifications of an Indian police officer include:
❖ ❖ * * *
He must never have been convicted of a felony, nor have been convicted of any misdemeanor for a period of 1 year prior to appointment.
The duties of an Indian police officer include:
*761 To obey promptly all orders of the police commissioner or the court of Indian offenses when assigned to that duty.
* * * * *
To abstain from the use of intoxicants, or narcotics and to refrain from engaging in any act which would reflect discredit upon the police department.
To refrain from the use of profane, insolent or vulgar language.
To use no unnecessary force or violence in making an arrest, search, or seizure. [25 CFR 11.304.]
# * * * *
13. Because of Indian preference, the Superintendent of the Wind River Reservation feels obligated to hire and favor a qualified Indian, if one is available, over a more qualified non-Indian. Only in those instances where there are no qualified Indians available does the Superintendent feel that he is permitted to appoint a qualified non-Indian to the tribal police force.
14. Prior to July 19.60, police officers for the reservation police force were chosen by the Joint Business Council from a list of approved names supplied by the Superintendent of the Wind River Reservation. However, in July of 1962, the Shoshones withdrew from this arrangement, and also decided against sharing the costs for local police patrols. As a result, the Bureau of Indian Affairs advanced funds to the Arapaho tribe with the understanding that they would continue the police operations in a fashion similar to that previously conducted by the Joint Business Council. For the remainder of 1962, and thereafter through 1967, policemen were appointed by the Arapaho Business Council from a list of candidates that had been evaluated by the Superintendent and found to be qualified by him. Consequently, all members of the Wind River Reservation police force are members of the Arapaho tribe.
15. The ultimate authority for appointment, method' of appointment, termination and method of termination of Indian policemen rests with the United States Government, and, more directly, with the Bureau of Indian Affairs.
16. Robert Hebah lived with his wife, Laura Hebah, from May 1,1967, until the time of his death in a low rent apart
17. Robert Hebah was a heavy drinker, and for some time immediately prior to his death, he was drunk practically every week. While drunk, Hebah was belligerent and offensive, however lie was never known to have followed through on any of his threats. His arrest record indicates that, aside from belligerent and sarcastic comments, he cooperated with the arresting officers. Nonetheless, Mrs. Hebah often reported to the police that Mr. Hebah had made threats to shoot it out with any officer who tried to arrest him. Hebah had been arrested before for being drunk, and while armed with a rifle. However, in that instance the arresting officer found him asleep in his locked car, and was able to persuade Hebah to unlock the car and hand over the rifle. Prior to 1960, he had been convicted only on a charge of disorderly conduct, once for assault and battery and once for public intoxication. Also on February 11,1966, the Court of Tndia.n Offenses, Wind River Jurisdiction, issued an Order, operative for an indefinite time, that he was to not disturb, annoy or molest Mrs. Hebah. Mr. Hebah was also ordered “* * * not * * * to go on the premises of Laura Hebah, while in an intoxicated or disorderly condition.”
18. Robert Hebah worked for a limited time as a school custodian for the Reservation Sanitation Department, however Mrs. Hebah testified that he also kept busy as a farmhand.
19. Norman Moss was 27 years old at the time of the
20. Moss was temporarily employed on tbe tribal police force on March 28, 1966, and became a permanent member of tbe force on April 6,1966. Prior to being hired as a tribal police officer, Norman Moss was convicted:
(a) In March of 1958 for driving without a license, reckless driving, and driving on the wrong side of the road;
(b) In September 1958 for reckless driving and driving without a license;
(c) In June 1959 for disturbing the peace;
id) In July 1963 for disorderly conduct;
(e) In August 1963 for driving without a license; and,
(f) In November 1964 for contempt of court, however the disorderly conduct charge from which the contempt conviction resulted was dismissed.
21. While employed as a tribal police officer, Moss was on several occasions accused of assault and battery by the ar-restees. These charges grew out of complaints from certain arrestees of unprovoked beatings and excessive use of mace. All of the cases against Moss which were brought before the tribal courts have been dismissed. In these cases, Moss was represented by the attorney who was “* * * a prosecutor for the Shoshone and Arapahoe Indians, * * *” while complainants were not represented by counsel. In one of these cases, complainant was allowed to testify, but all of his witnesses who were in an adjoining room were not called. Mr. Moss has been charged with assault and battery in a case before the District Court of Fremont County, Wyoming. However, the disposition of that case is uncertain. The Tribal Court of the Wind River Reservation consists of two judges. The judges are appointed by the Superintendent, subject to confirmation by two-thirds vote of the tribal council. The tribal judges are not required to have any legal training, and Judge Lawrence Miller, who presided over the two assault and battery cases against Moss, only has a high school education.
23. The Indians on the Wind River Reservation fear the Lidian police officers because of abuses which these officers have committed in the past, and because these officers have on occasion picked up an Indian without cause. The Indians on the reservation fear Norman Moss. However, Moss had, without incident, arrested Mr. Hebah in the past for being drunk. Moss never used mace on Mr. Hebah, although he has used it on others.
24. Superintendent Hobbs stated that Moss’ application for tribal policeman listed all of the acts that he had been convicted o'f and so he was aware of them at the time of his evaluation for the Tribal Police Force. However, since Moss had never been convicted of a felony, and had not been convicted of a misdemeanor within 1 year of the date of his application, Hobbs found that Moss met the relevant requirements of the Code of Federal Regulations. Further, if Moss was selected again as a current applicant for the tribal force, Hobbs said he would hire Moss. However, Chief Ted Oman of the Police Department of Lander, Wyoming, would not have hired Moss on the basis of his knowledge of Moss’ reputation, as a member of the Lander Police Department.
25. Mr. Hebah had been in poor health, and after com
26. While in bed, Mr. Hebah turned on his wife and attempted to choke her and stated:
We are both sick, and we might ‘as well get rid of our lives some easy way. * * * I am going to finish this, this time * * *.
Fearing that she was going to be beaten, Mrs. Hebah on the pretext of obtaining some medication, left their bedroom to share the bedroom of their daughter, Cecelia Bose, who was pregnant at the time.
27. Bobert Hebah owned a .22 long rifle with which he hunted. For reasons which do not appear in the record, Alvin Hebah had some time previously taken the rifle away from his father and hid it in the trunk of the family car. However, Bobert Hebah apparently unknown to his family found out where the rifle was hidden and retrieved it for use in connection with tribal games which were being staged at the Community Hall the weekend before his death. However, instead of returning the rifle to the trunk of the car where he had found it, Hebah placed the rifle in the closet of his bedroom. Sometime after his wife left their bedroom, Mr. Hebah loaded the rifle. He then asked a grandchild, who was sleeping in the Hebah bedroom, to tell Mrs. Hebah to come back. Instead Mrs. Hebah, her daughter and the grandson fled to the apartment of a next door neighbor. The neighbor admitted them 'and stated: “Well you could stay here for a while * * Mrs. Hebah, after being allowed in, explained to the neighbor that her husband was drunk and had a loaded rifle, and that “He’s mad at us, he’s got a gun, and I’m scared to go back in the house.” She went on to explain that she felt that the police should be called to take the rifle away from
28. Instead of calling the police, Mrs. Hebah waited for what she felt would be sufficient time for Robert to pass out from the consumption of the additional alcohol which he had brought with him to the apartment. Then, leaving her grandson at the neighbor’s, she and her daughter returned to her apartment. They immediately went to Cecelia Rose’s bedroom and went to bed. After only approximately five minutes had elapsed, she heard her husband leave his bedroom and go to the living room of the apartment. Frank Tillman, Mrs. Hebah’s brother, and Merle Moon, her son by a previous marriage, were sleeping in the living room of the Hebah apartment. Mrs. Hebah relates that she heard Robert Hebah threaten to shoot her brother. However, instead of shooting Mr. Tillman, Robert Hebah kicked him in •the back and chased both Tillman and Moon from the apartment.
29. Mrs. Hebah got out of bed and without even attempting to talk to Mr. Hebah, ran out the back door of the apartment. Cecelia Rose, on the other hand, got out of bed and went into the living room and tried to take the rifle away from Mr. Hebah. However, the strap of the rifle was around his shoulder and she was unsuccessful in her attempt to wrest away the rifle. During the struggle, Cecelia Rose saw that her father had his finger on the rifle trigger. Cecelia Rose decided that her struggle was useless and also ran out of the apartment to join her mother at the apartment of their neighbor. However, this time Mrs. Hebah was determined to call the police for help. Mrs. Hebah and Cecelia Rose were on their way to the Tigee Village office to make the phone call when she saw a neighbor, and after discussing their problem the neighbor offered to make the phone call for her. Mrs. Hebah and Cecelia Rose returned to the apartment of their neighbor and waited outside for the police to arrive.
80. Alvin Hebah’s wife, Joyce, who was pregnant at that time, was also spending the night at the Hebah apartment. While it is unclear whether she left the apartment at the time of Mrs. Hebah’s first or second departure, it is
31. The call was received at police headquarters at about 1:00 a.m. on March 14, 1968, by Alvin Wallace Hebah, son of the deceased who was in jail and was acting as a trustee at that time. After taking the call, Alvin Hebah contacted Officer Norman Moss, who had just arrived home from police duty and was filling out his daily report sheet. Alvin Hebah told Officer Moss that an officer was needed at Tigee Village. Moss was not told that the disturbance was at the Hebah apartment or that the disturbance in any way involved Kobert Hebah.
32. Moss arrived at Tigee Village at about 1:15 a.m. and drove slowly around the court which divided the two rows of apartments, in an effort to find the disturbance. Not seeing anything on his first pass around the driveway, Moss decided to traverse the area one more time. Again failing to hear or see anything of an unusual nature, Moss was about to leave when he spotted Mrs. Hebah and Cecelia Rose standing behind an abutment at the entrance of their neighbor’s apartment. Upon questioning Mrs. Hebah, Moss was told that they had called because they had been chased out of their apartment by Mr. Hebah. Moss was also told that Mr. Hebah was drunk again, and armed with a loaded rifle.
33. Because of the information given Moss by Mrs. Hebah, concerning the drunken and armed condition of Mr. Hebah, Norman Moss called Special Officer Harry Svela for assistance. Mr. Svela was the special officer assigned to the Wind River Reservation and, accordingly, was the ranking officer of the Tribal Police Force. 'Svela arrived at Tigee Village at about 1:30 a.m. and was immediately informed by Moss that Robert Hebah had chased his wife and daughter from their apartment in an intoxicated and armed condition. After establishing that Moss 'had not called for other assistance, Svela immediately called John Whiteman, Chief of Police of the Wind River Reservation, and Charles Whiteman, a policeman with the Tribal Police Force, as reinforcements. 'Svela spoke
34. Family squabbles or night-time disturbances are a routine problem on the Wind Eiver Eeservation. Drinking by either the husband or the wife, or both, is the usual reason for the disturbance. The reservation police are taught that a warrant is needed if an offense is not committed in their presence. Arrests arising out of family squabbles are discouraged, even if one party insists on an arrest, without a signed complaint. An officer often hears that the husband is drunk and is either going to kill some person or shoot a police officer, but such threats are usually not reliable. While each family squabble is different, the reservation officers (like police officers everywhere else) are taught, as a general rule, to merely separate the parties and have one of the spouses spend the rest of the night with neighbors or friends, or at a motel or hotel.
35. When the reservation police respond to a family disturbance call, they ordinarily follow the standard police procedure of not bothering the parties if
'(a) all is quiet upon their arrival;
(b) the parties are already separated (such as one spouse being with the neighbors) ; or
■(c) they believe the disturbing party is asleep which is probable if that party has been drinking.
36. Officer Moss, in the meantime, had taken up a position at the rear of the apartment, to keep the back of the apartment under surveillance and to prevent Mr. Hebah’s possible departure therethrough, in the event he was in the apartment. While at his post, Moss heard a mumbled voice which originated from inside the Hebah apartment.
37. Charles Whiteman received the call to come to Tigee
38. From the time that Officer Moss first arrived at Tigee Village at about 1:15 a.m., until the time that Chief White-man arrived at approximately 1:55 a.m., all was quiet in the darkened Hebah apartment. The officers neither heard nor saw any kind of disturbance except for the mumbled voice which Moss heard. Indeed, none of the officers had seen Mr. Hebah during this time. However, this is not to say that Mr. Hebah was asleep or had passed out. In fact, Mrs. Hebah’s assumption that Mr. Hebah was lasleep or had passed out at the time of her earlier return proved to be incorrect.
39. None of the officers had a signed complaint or a warrant of any kind from any source authorizing the arrest of Mr. Hebah on any charge. The officers carried with them complaints for complaining parties to sign, and they would ordinarily act upon a signed complaint. There was a tribal judge only 3 or 4 miles away who could have issued a warrant for Mr. Hebah’s arrest. Svela testified that he was aware of the Code of Federal Regulations and conducted schools with respect thereto. Norman Moss has attended such schools and received a certificate therefrom.
40. After being briefed, shown the apartment layout, and having been told which bedroom Hebah was probably occupying, Officer Charles Whiteman proceeded to the rear of the apartment to assist Officer Moss. However, finding that Moss had already entered the apartment and turned on some of the lights, Charles joined Moss inside. Moss had by this time inspected several rooms of the apartment and was about to open the door of the bedroom that Mr. Hebah was occupying. Charles knew that Hebah was thought to be occupying that particular bedroom, and he stopped Moss from opening the
41. Special Officer Svela and Chief Whiteman remained at the front of the Hebah apartment to keep the locked front door under surveillance, however after observing a light come on in the apartment Svela went to the rear of the apartment to investigate. Chief Whiteman remained at the front door. Svela eventually entered the Hebah apartment through the back door, made a quick search of the apartment and joined the other officers. Officer Moss then unlocked the front door and let Chief Whiteman in.
42. After all of the officers were inside the Hebah apartment, they positioned themselves about the closed bedroom door. Charles Whiteman was in the hall leading to the back door. Officer Moss positioned himself at the junction of the kitchen and living room, near the front door, while Special Officer Svela and Chief Whiteman flanked the closed bedroom door. Svela was the first to try to coax Hebah to come out of the bedroom and to discuss the situation. Next Chief Whiteman, from his crouched position next to the door, attempted to coax Hebah out of the bedroom, but to no avail. At one point, Chief Whiteman called Hebah “Dry Meat” a nickname which Hebah and the Chief called each other in the past, and which the Chief did not find offensive. The appellation did have connotations concerning one’s sexual adequacy. However, instead of Hebah indicating a willingness to discuss his problem, he told the officers that if they wanted him, they would have to come in and get him. Further, to Svela’s inquiry about whether he was armed, Hebah replied that they would have to come in and find out. There is no doubt that Hebah knew that he was being called by Chief John Whiteman of the Tribal Police for in response to at least one of the Chief’s calls, Hebah replied: “No, John, come on in and get me.” In all, both Svela and Chief White-man tried without success for about 10 minutes to talk Plebah out of his bedroom.
43. During this 10 minute period, the officers did not tell Plebah what they wanted him for, that he was under arrest,
44. As a result of Mr. Heibah’s refusal to come out to talk, Special Officer Svela decided to use tear gas in an attempt to get him out of the bedroom. Special Officer Svela felt that maximum effectiveness would be achieved if the tear gas were discharged inside of the bedroom occupied by Hebah. Svela knelt beside the door and with one motion turned the door knob and pushed the bedroom door open. However, because of an obstruction, the door opened only 6 to 8 inches. Almost simultaneously with the opening of the door, Svela threw in the gas canister grenade, and Hebah fired a shot from his rifle. Something, possibly a fragment of the door or a wood splinter, whistled past Svela’s head. Because of the limited opening of the door, the tear gas grenade struck the door or door jamb and bounced back.
45. The tear gas canister used was approximately 6-8 inches in length and 3% niches in diameter. It was of the jumper type that was capable of self-propulsion after it went off, and it emitted its contents from several openings in the canister. Althougjh the canister indicated that it should be used before 1958, Svela thought that it would, nonetheless, serve its intended purpose in 1968. In this instance, the tear gas canister followed a 5-foot long and 1-foot wide path along one wall of the living room.
46. Officer Charles Whiteman, who was positioned at the rear of the apartment, heard the “pop” of the gas canister and smelling the gas left the apartment by way of the back door. Moss, who was positioned at the junction of the kitchen and the living room left the apartment by way of the front entrance. Finally, Chief Whiteman and Special Officer Svela left the apartment by way of the front door. Chief Whiteman recalled hearing the “pop” of the grenade and seeing a white smokelike cloud forming.
47. The officers thought they heard a second shot fired after the tear gas canister exploded and about the time they were evacuating the apartment. However, the officers were able to find only one expended shell in the Hebah apartment after
48. Charles Whiteman took up a position outside the rear door of the Hebah apartment. Charles Whiteman, ¡as was the case with each of the other officers, had not drawn his revolver during the entire time he was inside the apartment. Moreover, he did not draw his revolver after he was outside of the apartment. After leaving the Hebah apartment, Chief "Whiteman turned to the right and went behind a solid concrete-block abutment which is located about 8 feet from the door, projects about 4 feet from the front wall of the apartment, 'and extends vertically from the ground to the roof of the apartment, to draw his police revolver. Moss 'after leaving the apartment, ran to the left of the front door and momentarily went behind a similarity located 'and designed abutment and drew his service revolver. Moss then assumed ¡a partially exposed position at the edge of the abutment which would give him an unobstructed view of the Hebah front door, and aimed his revolver at the Hebah door. Svela ran to the left of the front door, around Moss and behind the abutment, and drew his revolver. Svela was able from his position, to view the front door of the Hebah apartment.
49. By this deployment, the Whitemans could cover the rear door, and Chief Whiteman, Svela and Moss could cover the front door. The officers expected Mr. Hebah to come out of his apartment as a result of the tear gas. From Mrs.
50. While John Whiteman, still behind the abutment, was motioning to Charles Whiteman to reposition himself so that their relative positions would not be in each others line of fire, Hebah came out the front door. The total time which elapsed from the time that the officers assumed their positions relative to the front and rear doors of the apartment, ¡and Hebah’s appearance at the front door of the apartment was estimated by 'Svela to be 5 to 10 seconds.
51. Hebah came through the front door carrying his loaded and cocked rifle. This area was lighted by a front door light. Although Hebah was a ’left-handed shooter, he was carrying the rifle with the stock in his right hand ¡and the muzzle in his left hand. The rifle barrel was pointed generally up and in the direction of Svela and Moss. Hebah passed through the door, took a couple of quick steps on to the concrete entrance slab and momentarily paused. Seeing this, Svela cautioned Moss to “Watch him, watch him.” Hebah then turned his head land eyes toward Moss and Svela, and simultaneously raised his arms with the rifle. None of the officers ordered Hebah to drop his rifle, told' him that he was under arrest, or gave him any other warning or command. Instead Moss fired a single ¿hot from his standing position approximately at the edge of the abutment, mortally wounding Hebah. Hebah
52.Svela, Moss and Chief Whiteman approached Hebah. Svela quickly picked up the rifle and set it to one side, from that point on Chief Whiteman took possession of the rifle. A later inspection showed the rifle to have eleven bullets in its magazine, one bullet in its firing chamber and it was cocked for firing. Hebah was placed in a police car and taken to the Fort Washakie Clinic for treatment. The clinic doctors felt that an operation was necessary, and so spent about 5 minutes stabilizing Hebah in preparation for transfer to a hospital where thoracic surgery could be performed. Hebah arrived at Bishop Randall Hospital in Lander, Wyoming, at about 2:20 a.m. There the doctors established that Hebah had sustained a bullet wound in the anterior chest to the left of the sternum at the level of the second rib. The bullet entered at the left first rib and became lodged near the right fourth rib. Hebah was 'given blood and a tracheotomy performed. However, again because of limited facilities, Mr. Hebah was flown to University Hospital in Salt Lake City, Utah, where, on March 14, 1968, he died while undergoing surgery. The cause of Hebah’s death is officially described as “gunshot wound left anterior thorax perforating ascending aorta and esophagus.”
53. While the three other officers were taking Hebah for hospitalization, Chief Whiteman reentered the Hebah apartment and aired it out by opening two or three windows. He also told the crowd of people which had gathered, including Mrs. Hebah, to stay out of the apartment. He then left for the police station and waited for further developments.
54. Chief Whiteman, after being told of Hebah’s death, went to the Hebah apartment with another officer to inform Mrs. Hebah. He found Mrs. Hebah crying in the bedroom of her apartment. She had already learned of her husband’s death from a doctor. After expressing his sympathy, Mrs. Hebah told the Chief:
*774 Robert was sickly * * * he always wanted to shoot it out with a policeman and I think that’s the way he wanted it * * *.
Conclusion ob Law
Upon the foregoing findings of fact and opinion, which are adopted by the court and made a part of the judgment herein, the court concludes as a matter of law that plaintiff is not entitled to recover on her claim. Therefore, plaintiff’s petition is dismissed.
T. 899:
“Q [Mr. Spence] And when you got out of the house, you got behind the abutment, didn’t you ?
“A [Moss] Xes, about right here in a kneeling position."
Officer Svela, who “didn’t give any consideration to shooting him [Hebah] at all”, was also behind the abutment “slightly to the left of Norman Moss” (T. 123-24).
T. 904:
“A I was behind the abutment, then I moved back out again * * *
“Q Did you testify, [at the corner’s inquest], ‘I went in behind that abutment and puUed my revolver out ?’
“A For a short time, X did.
“Q Than (sic) why did you come back out again?
“A So I would get a better shot.”
T. 917-18:
“Q Could you Rave bit bim in the leg from that distance while be was standing there looking around?
“A I wasn’t going to wound bim.
“Q Well, X know you weren’t going to wound bim, but I am saying could you have hit him in the leg if you had wanted to?
“A If I wanted to, I suppose X could have shot him in the leg.”